Schwentner v. White, Civ. No. 840.

• Decision Date: 04 December 1961
• Docket Number: Civ. No. 840.
• Citation: 199 F. Supp. 710
• Parties: Mildred E. SCHWENTNER, Plaintiff, v. Ernest WHITE, Defendant.
• Court: U.S. District Court — District of Montana

199 F. Supp. 710

Mildred E. SCHWENTNER, Plaintiff, v. Ernest WHITE, Defendant.

Civ. No. 840.

United States District Court D. Montana, Missoula Division.

December 4, 1961.

Smith, Boone & Rimel, Missoula, Mont., for plaintiff.

Garlington, Lohn & Robinson, Missoula, Mont., for defendant.

WILLIAM D. MURRAY, Chief Judge.

In this action plaintiff seeks to recover damages for personal injuries sustained on or about September 4, 1960, when a boat in which she was riding struck a cable maintained by defendant between the mainland and Cromwell Island in Flathead Lake, Montana. In the first cause of action it is alleged that said Flathead Lake is a navigable body of water of the United States, and that said cable, constituting an obstruction to navigation, was maintained by said defendant without the consent of the Congress of the United States or the approval of the Chief of Engineers or the Secretary of the Army, and that it was not maintained under any authority of the Legislature of the State of Montana. The second cause of action alleges negligence on the part of defendant in maintaining the cable at such a height above the surface of the lake that small boats could not pass under it without striking it.

Plaintiff submitted a series of interrogatories under Rule 33 of the Federal Rules of Civil Procedure, 28 U.S.C. Included in the interrogatories were the following:

"20. Are you insured by any policy of General Liability Insurance?

"21. If the answer to Question No. 20 is `Yes', state the name of the Company issuing such policy, and the amount of the coverage."

Defendant objected to answering these interrogatories on the ground that they were irrelevant and immaterial and not reasonably calculated to lead to the discovery of admissible evidence in said action.

In his argument and brief in support of his objections to these interrogatories, defendant recognizes that Judge Jameson of this court, on March 6, 1961, in an exhaustive opinion, ordered the defendant to answer similar interrogatories in the case of Johanek v. Aberle, D.C., 27 F.R.D. 272. However, defendant points out that the Johanek case involved an automobile accident, and argues that in ordering discovery concerning automobile liability insurance in that case, Judge Jameson relied heavily on the public policy of the State of Montana with regard to automobile accidents and automobile liability insurance expressed in the Montana Motor Vehicle Safety-Responsibility law, R.C.M.1947, § 53-418 et seq., and that this not being an automobile accident case, such consideration is not present and the Johanek case does not apply.

A reading of the opinion in the Johanek case indicates that while Judge Jameson considered and in part relied on the Montana Safety-Responsibility law in ordering discovery, his decision was likewise influenced by other considerations. He cited and considered the California cases of Superior Insurance Co. v. Superior Court in and for Los Angeles County, 1951, 37 Cal.2d 749, 235 P.2d 833; Laddon v. Superior Court, 1959, 167 Cal.App.2d 391, 334 P.2d 638; and Pettie v. Superior Court of Los Angeles County, 1960, 178 Cal.App.2d 680, 3 Cal.Rptr. 267, and the Illinois case of People ex rel. Terry v. Fisher, 1957, 12 Ill.2d 231, 145 N.E.2d 588. In those cases it was held that a plaintiff had a discoverable interest in a defendant's liability insurance policy because statutes of California and Illinois required that all public liability insurance policies covering bodily injury, issued in those respective states, contain a provision permitting injured persons who first obtained a judgment against the insured to proceed to enforce that judgment directly against the insurer. Judge Jameson pointed out that while Montana had no such statute, the standard automobile liability insurance policy contained a...